Snatching the conduct of the case away from the court

Case No. O2012_039 ¦ Decision of 21 May 2013 ¦ “Auszug aus der Verfügung betr. Prozessleitung”

HEADNOTE

Art. 124(1) CPC:
The court is the director of the proceedings. The parties are not allowed to make submissions contrary to an order of the court.
(Non-official translation from German into English language)

A platitude, you think? Let’s have a look at this case:

The plaintiff filed an action for patent infringement on 31 July 2012, based on two European patents. The defendant filed his statement of defence on 02 November 2012, denying infringement of both patents. Moreover, both the defendant and a notified third party (cf. Art. 78 ff. CPC) also argued for nullity of one of the patents in suit by way of a plea in objection.

With order of 07 February 2013, the FPC required the plaintiff to file the reply. However, it was explicitly held that the reply had to be restricted to the alleged nullity, for the time being. The plaintiff provided an accordingly limited reply in due time. A preparatory hearing was scheduled for 24 May 2013.

Shortly before the preparatory hearing, the plaintiff filed yet another submission. First, the persons attending the preparatory hearing on behalf of the plaintiff were indicated. Next, the plaintiff briefly – but nevertheless on eight pages – replied on the non-infringement arguments brought forward by the defendant in his statement of defence. In addition, the plaintiff put a supportive private expert opinion on file. The plaintiff justified this submission essentially as follows:

In order to provide a sound basis for the settlement negotiations, the plaintiff feels that it is necessary already prior to the preparatory hearing to briefly apprise the court and the counterparty of the plaintiff’s arguments pertaining to the alleged non-infringement. The plaintiff will elaborate these arguments further when being given the formal opportunity to do so.

Between the lines, one can catch a glimpse of how this must have irked the court. For the preparatory hearing in accordance with Art. 8(4) lit. b of the Guidelines on Proceedings before the FPC, it was the intention of the court to have one reply of each party on file pertaining to the questions of infringement and nullity. This is why the plaintiff was required to restrict the reply to the alleged nullity, for the time being. If the plaintiff had provided his full reply already prior to the preparatory hearing, he would have had already two submissions on file pertaining to the allegend infringement. This would negatively affect the interests of the defendant. Moreover, the plaintiff would have no opportunity anymore to consider learnings from the preparatory hearing when his full reply was already on file.

The FPC decided to not take the latest submission of the plaintiff into account (except for the indication of the persons attending the preparatory hearing), and the defendant was not required to respond.

As a sidenote, the FPC held that parties may well request reconsideration if they deem an order inappropriate. However, it is not admissible to comply with an order in first place, and to later on undermine it with yet another submission.

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. O2012_039 ¦ Decision of 21 May 2013 ¦ “Auszug aus der Verfügung betr. Prozessleitung”

(not identified) ./. (not identified)

Subject(s):

  • Patent infringement

Composition of the Board of the FPC:

  • (not identified)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

Download (PDF, 16KB)

Request for recusal of a reporting judge held unfounded (O2012_022 cont’d)

Case No. O2012_022 ¦ Decision of 16 January 2013 ¦ “Auszug aus dem Beschluss Abweisung Ausstandsbegehren”

HEADNOTE

Art. 47 CPC: A request for recusal cannot be based on factual circumstances that are not yet reality and for which it is not yet clear whether they will ever come into existence.
(Non-official translation from German into English language)

Two orders in procedural matters have already been published by the FPC in this case; see this blog here and here. Moreover, a hearing is scheduled for 09 July 2013. It was only known by now that the plaintiff sought for a declaratory judgement of nullity in the field of pharmacy. From the present decision, it is at least clear that this case pertains to the field of androgenic alopecia (a specific kind of hair loss); cf. reasons 3 of the decision. No further details on the merits of the case are publicly available by now.

The reporting judge had provided his assessment of the case on September 16, 2012. With reply of October 26, 2012, the defendant put essentially the following requests on file:

  1. The assessement of the reporting judge shall not be relied on.
  2. A court expert with medical or pharmaceutical background, specifically in the field of androgenic alopecia, shall be appointed.
  3. The parties shall be given the opportunity to comment on the questionnaire.
  4. The reporting judge shall recuse or has to be excluded.

The present excerpt of the decision only deals with the fourth request, i.e. recusal of the reporting judge. It is the first decision being published by the FPC concerning a request for recusal of a judge (based on Art. 47 CPC).

Defendant argued that the reporting judge cannot be expected to be unbiased anymore when it comes to the assessment of the opinion provided by the court expert (since the reporting judge had already provided a written assessment himself); this would contravene the guidelines established by the Supreme Court e.g. in the case no. 4A_3/2012 (r. 2.3).

The Administrative Board of Judges of the FPC is competent to decide on such requests (Art. 11 PR-PatC). The ratio of the decision is clear-cut: It was not established yet whether a court expert will be appointed at all. Thus, the fourth request was held unfounded. Evidently, the fourth request was not construed under the condition of at least the foregoing requests 1. and 2. being granted.

As a sidenote, the Administrative Board of Judges briefly commented on the question whether the defendant should have acted earlier. Apparently, the defendant doubts that the reporting judge is technically competent enough to properly assess the specific questions at stake in the field of androgenic alopecia. However, these doubts were only brought forward when the assessment of the reporting judge was already established, but not when the reporting judge had been appointed. It thus remains to be seen whether the defendant will still be heared with his other request pertaining to the appointment of a court expert. This, however, is a question on the merits of the case which has not to be decided by the Administrative Board of Judges.

This decision of the Administrative Board of Judges is already res judicata.

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. O2012_022 ¦ Decision of 16 January 2013 ¦ “Auszug aus dem Beschluss Abweisung Ausstandsbegehren”

(not identified) ./. (not identified)

Subject(s):

  • Declaratory judgement of nullity

Administrative Board of Judges of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)
  • Dr. Tobias BREMI (Second Ordinary Judge)
  • Frank SCHNYDER (Vice President)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

Download (PDF, 13KB)